Does CALCRIM No. 362 allow the jury to draw an impermissible inference of guilt by adding "and you may consider it in determining (his/her) guilt"?

California, United States of America


The following excerpt is from People v. Capacete, G048795 (Cal. App. 2014):

Defendant argues CALCRIM No. 362, unlike CALJIC No. 2.03, allows the jury to draw an impermissible inference of guilt by adding the phrase "and you may consider it in determining (his/her) guilt." Defendant relies on Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 820, which, in upholding the use of CALJIC No. 2.03, stated that "[s]o long as the instruction does not state that inconsistent statements constitute evidence of guilt, but merely states that the jury may consider them as indicating a consciousness of guilt, the instruction would not violate constitutional rights."

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